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At crossroads: Challenges of Canada’s proposal to residential school survivors | Jennifer Leitch

Friday, July 16, 2021 @ 2:09 PM | By Jennifer Leitch


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Jennifer Leitch %>
Jennifer Leitch
Without engaging in a detailed review of both Canada’s recent proposal to appoint an Independent Special Adviser (ISA) to review claims of survivors of St. Anne’s residential school in Ontario and the many criticisms levelled at it, it is worth highlighting some of the main challenges associated with the proposal.

The purpose of engaging in such an exercise is to situate these concerns within larger and continuing discussions about the role of the Canadian government in operationalizing the Indian Residential School Settlement Agreement (IRSSA) and pursuing meaningful reconciliation.

Perhaps the most telling criticism of the federal government’s proposal is the fact that there were a variety of limitations placed on the ISA, with little to no accounting for the voice of the potentially impacted claimants. While limiting the claimants’ participation in the process, Canada’s proposal provided for the federal government’s continued involvement in the review process with little commitment to adopting the conclusions.

In addressing the issue of the claimants’ involvement, Justice Paul M. Perell ordered the appointment of an amicus who would “represent and be an advocate for the St. Anne’s IAP [Independent Assessment Process] claimants during the review process.” The amicus would be a former adjudicator familiar with the nature of IAP hearings and sensitive to the type of claims addressed in the IAP, though unconnected to St. Anne’s.

Canada had contemplated the informal assistance of a former adjudicator. However, such an individual would have little formal influence in the process, presumably providing an administrative function. Additionally, pursuant to Canada’s proposal, the potentially affected claimants would only be permitted limited access to the ISA in the form of restricted written submissions.

In contrast, Canada would provide the ISA with all of the documents that enabled the independent reviewer to conduct his review. This is noteworthy because the ISA’s review was solely based on documentary records (provided by Canada) and not on any submissions from the claimants.

Again, this proposal would leave the claimants and their lawyers with little voice in the review, but, at the same time, provide Canada with a significant degree of control over the review process. Moreover, it would appear that while the court and Canada received a final report, there were no express provisions for the presentation to the report details to the claimants.

Certainly, such a plan would do little to reassure the parties that the review process aimed to ensure that decisions reached in the initial IAP results were fair. Instead, it would do more to fortify the federal government’s position about those same hearings.

To further ensure the independence of the review, Justice Perell made it very clear that, beyond providing documentation to the ISA, Canada was to have no involvement in the review process.

This definitive statement may be aimed at reassuring St. Anne’s claimants of the independence and, therefore, legitimacy of the review process; this spoke directly to the continued mistrust and suspicion held by certain of the claimants about the role of the federal government’s representatives involved with St. Anne’s.

In this regard, Justice Perell revised the proposed questions to be addressed by the ISA and amended the terms of reference to limit the scope of inquiry outlined by Canada in its proposal. Specifically, he removed a question that called on the ISA to determine whether a claimant (and/or their legal counsel) decided to proceed with their claim despite having the disclosure; claims that were withdrawn, settled or abandoned were not to be addressed. From the court’s perspective, this was a distinction without meaning.

Moreover, Canada’s direction that the ISA not consider the impact of non-disclosure on abandoned, settled or withdrawn claims draws on a “blame the victim” mentality. This is particularly so when, as Justice Perell pointed out, the claims may not have proceeded exactly because there was a lack of relevant information.

Finally, Justice Perell’s contemplation of there being ongoing issues and the importance of the ISA conducting an independent review motivated him to leave open the possibility of the ISA returning to court for further direction or disclosure. Such an option reflects the need to ensure that the ISA is and remains independent in his inquiry.

The reality of these modifications to Canada’s proposal signals a troubling dynamic. The need for Canada to continue to control the process related to the IRSSA and to limit the claimants’ ability to challenge the process runs directly contrary to its stated commitment to reconciliation.

Notwithstanding the need to ensure that individual claimants were able to secure appropriate compensation based on disclosure and Canada’s assumed responsibilities under the IRSSA, there is a larger underlying issue: whether Canada is meeting its obligations generally in respect of the IAP at St. Anne’s.

Presumably Canada’s latest legal manoeuvring should not be about clearing its name. Rather, it ought to be about ensuring that the claimants of St. Anne’s are treated fairly, compassionately and consistent with the broader challenge of reconciliation.

In light of all that has and continues to occur, Canada must urgently re-evaluate the positions it has adopted in respect of St. Anne’s. Whatever it may suggest it is doing positively is not consistent with the negative impact of its legal conduct.

In the present circumstances and in line with a recent House of Commons motion, nothing short of a completely independent and arm’s-length review of all IAP hearings at St. Anne’s is needed, together with an agreement that the federal government immediately remedy all claims that were found to be negatively impacted by non-disclosure. In this way, the federal government can indicate that it is meeting fully its public commitment to reconstituting its relationship with Indigenous people.

Staying at the crossroads serves no one’s interest. What is needed instead is a positive move forward.

This is part two of a two-part series. Part one: Stalled at crossroads: Ottawa’s commitment to residential school survivors.

Jennifer Leitch is a researcher and law teacher, primarily in the area of legal ethics and professionalism, access to justice and dispute processes. Leitch has taught at Osgoode Hall Law School and the University of Toronto Faculty of Law. She is also an instructor in the ethics, society and law program at Trinity College, University of Toronto and a senior research fellow with the Canadian Forum on Civil Justice. Contact her at leitchbrain@gmail.com.

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